The opinion of the court was delivered by: Reagan, District Judge:
MEMORANDUM AND ORDER DENYING SUMMARY JUDGMENT MOTION AS TO PLAINTIFF DARREN PALMER (DOC. 153)
A. Introduction and Procedural Overview
On September 4, 2007, Plaintiffs filed a three-count employment discrimination action against Casino Queen, Inc., under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as amended, the Illinois Human Rights Act, 775 ILCS 5/1-109, et seq., and state common law (the latter claims based on this Court's pendent jurisdiction). Additional Plaintiffs joined the suit via a November 12, 2007 Second Amended Complaint. Three other amended complaints followed.
Plaintiffs, African-American employees and former employees of the Casino Queen, allege that they were subjected to unlawful racial discrimination, harassment and a hostile work environment as a result of the Casino Queen's unlawful conduct. Plaintiffs seek an award of compensatory damages for past and future pecuniary and non-pecuniary losses, as well as punitive damages.
Now before the Court is Defendant Casino Queen (CQ)'s motion for summary judgment as to Plaintiff Darren Palmer (Doc. 153). CQ seeks summary judgment under Federal Rule of Civil Procedure 56. Plaintiff Palmer has filed a specific response in opposition (Doc. 215). Defendant CQ otherwise rests on its Master Reply (Doc. 331), and Plaintiff rests on her Master Surreply (Doc. 353).
Summary judgment is appropriate where the pleadings, discovery materials, and any affidavits show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010); Durable Mfg. Co. v. U.S. Department of Labor, 578 F.3d 497, 501 (7th Cir. 2009), citing FED.R.CIV.P.56(c). AccordAlabama v. North Carolina, -- U.S. --, 130 S. Ct. 2295, 2308 (2010); Levy v. Minnesota Life Ins. Co., 517 F.3d 519 (7th Cir. 2008); Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In ruling on a summary judgment motion, the district court must construe all facts in the light most favorable to, draw all legitimate inferences in favor of, and resolve all doubts in favor of the non-moving party. National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). Accord Reget v. City of La Crosse, 595 F.3d 691 (7th Cir. 2010); TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir. 2007).
What the undersigned may not do in deciding a summary judgment motion is evaluate the weight of the evidence, judge the credibility of witnesses or determine the truth of the matter. The court's only role is to determine whether there is a genuine issue of triable fact. National Athletic, 528 F.3d at 512, citing Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994).
A factual dispute is genuine "only if a reasonable jury could find for either party," and disputed facts must be outcome-determinative to be "material" and preclude summary judgment. Montgomery v. American Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). See also Van Antwerp v. City of Peoria, Illinois, 627 F.3d 295, 297 (7th Cir. 2010). But, as the Seventh Circuit Court of Appeals reiterated just days ago, in assessing the record before him, the undersigned Judge bears in mind that "the party opposing the motion gets the benefit of all facts that a reasonable jury might find." Loudermilk v. Best Pallet Co., LLC., -- F.3d --, 2011 WL 563765, *2 (7th Cir. Feb. 18, 2011).
In the instant case, Plaintiff Darren Palmer claims racial discrimination in violation of Title VII of the Civil rights Act of 1964, 42 U.S.C. § 2000(e)-3, as amended by the Civil Rights Act of 1991, and 42 U.S.C. § 1981 (Doc. 325, pp. 104-105, 224-226 (Fifth Amended Complaint, Counts 39 and 99)). Plaintiff commenced working for CQ in 1994 as a barback, and he was promoted to bartender that same year. Palmer continues to work in that capacity for Defendant CQ. At all relevant times, Palmer was supervised by Food and Beverage Department Director Dominic Gramaglia and Kelley Carey. Palmer enumerates several dates of allegedly discriminatory employment action during the period from March 2003-June 2005, as well as a continuous hostile environment due to the actions of white supervisors/inspectors, Carey and Gramaglia. For example, Palmer describes working the bar with other white bartenders, and being singled out for discipline for having a dirty bartop and leaving rags out. According to Palmer, there was no investigation into which of the bartenders was at fault; rather, he was suspended without pay. Plaintiff further contends he was disciplined unfairly, and whites bested African Americans with respect to shift assignments and other decisions that should have been based on seniority. Palmer also contends that he and African Americans in general were not offered the opportunity to work special events, which would have enabled one to make more money. On June 15, 2006, Palmer filed an EEOC complaint alleging an ongoing racially hostile work environment, and describing numerous incidents of perceived disparate treatment (Doc. 215-1). A Notice of Right to Sue was transmitted on June 4, 2007. Plaintiff Palmer was among the original plaintiffs who filed suit on September 4, 2007 (Doc. 2).
CQ maintains that summary judgment is appropriate because: (1) Plaintiff failed to file a timely charge of discrimination with the EEOC relative to his Title VII claims for discrete acts falling outside the 300 day window between August 19, 2005, and June 15, 2006; (2) Plaintiff's Title VII and Section 1981 claims fail under the McDonnell Douglas burden shifting model; (3) Plaintiff has filed to establish a claim for a racially hostile environment; and (4) CQ qualifies for the Faragher-Ellerth affirmative defense, because it has an anti-harassment policy with clear reporting procedures, which plaintiff unreasonably failed to utilize.
1. The Timeliness of the EEOC Complaint 42 U.S.C. § 2000e-5(e) dictates that an individual must initiate a discrimination claim by filing an EEOC charge within 300 days of the alleged discrimination, or those charges are time barred. Hall v. Bodine Electric Co., 276 F.3d 345, 352 (7th Cir. 2002). CQ observes that the specific incidents cited by Plaintiff Palmer occurred between March 2003 and June 2005, which is outside the 300 day period between August 19, 2005, and June 12, 2006. CQ's two sentence long argument regarding whether there is a timely filed EEOC complaint covering Plaintiff Palmer's Title VII claim is poorly and insufficiently drafted. CQ argues only that it is entitled to summary judgment relative to any "discrete acts" outside the 300 day period. It is undisputed that Plaintiff Palmer filed an EEOC complaint and received a Notice of his right to sue prior to the initiation of this action.
In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court held that, for purposes of Section 2000e-5(e), when a hostile environment is alleged, as opposed to a discrete discriminatory act, "[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for purposes of determining liability. Nat'l R.R., 536 U.S. at 117. Therefore, the Court perceives that CQ is referring to acts that cannot be connected to the hostile environment claim raised in the EEOC complaint. See generally Jackson v. City of Chicago, 552 F.3d 619 (7th Cir. 2009) (discrete acts involving non-promotion claims must have occurred within the 300 day period). The Court recognizes that CQ is, as a general matter, correct. If an act has no relation to "the whole" and falls outside the 300 day time period, that act is time barred. See Nat'l R.R., 536 U.S. at 118. However,further analysis is impossible. CQ does not ...